South Africa: Asylum Seekers Can Now Get Residence Visas

Asylum seekers in South Africa, whose applications for being a refugee in the country were denied, have been allowed to apply for a visa. South Africa’s Constitutional Court made this ruling in a unanimous judgment in October.

Background Story

Three asylum seekers whose applications for South Africa’s refugee status were denied brought their case to the High Court. The three applicants: Arifa Fahme, Kuzikesa Swinda, and Jabbar Ahmed had all wanted visas to stay in South Africa but were denied because they were asylum seekers.

Fahme wanted a visitor visa to stay with her family legally in the country while Swinda and Ahmed both wanted critical skill visas but their refugee background stood in their way.

Their visa rejections were backed by a directive given by South Africa’s Home Affairs office in February 2016. According to the directive, asylum seekers can only get visas when they have received certifications from the Standing Committee for Refugee Affairs, confirming them as refugees. By this, refugees could never apply for any visa in South Africa.

The Court Rulings

Looking into the matter, the High Court discovered that the Immigration Act permitted foreigners to apply for a visa or residence permit in the country. It also came to see that this same Immigration Act complemented the Refugees Act. It, therefore, came to a resolution that asylum seekers have every right to apply for residence visas in South Africa since they were foreigners as well.

The court reasoned that Fahme’s right to dignity would be violated if she were denied the right to stay with her family. In the same vein, Swinda and Ahmed should get the critical skills visa they sought if they met the requirements.

Home Affairs made an appeal to the Supreme Court against the decision of the High Court and won. The Supreme Court ruled that the asylum seekers were not eligible to apply for residence permits in the country because the Immigration Act required them to apply for the visas from outside the country.

The case was then taken to the Constitutional Court.

After many considerations, the Constitutional Court ruled that because the permanent residence visa did not require applicants to apply for it from outside the country, and was open to “any foreigner,” Fahme could continue to stay until her visa was processed and sorted out.

As for Swinda and Ahmed, unfortunately, their case was different from Fahme’s, but they could apply for exemptions so they could continue to stay in South Africa while their visas were being processed.

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